After Boston acquittal, could Aaron Hernandez find freedom from Bristol County case?

Tuesday

Apr 18, 2017 at 6:15 PMApr 19, 2017 at 7:53 AM

Brian Fraga Herald News Staff Reporter @BfragaHN

Editor's Note: This story was published Tuesday evening, before Aaron Hernandez was found dead in his cell early Wednesday morning after killing himself.

FALL RIVER — Aaron Hernandez may have been acquitted of murder charges last week in Boston, but the odds are against the former New England Patriot ever walking free again, much less resuming an NFL career.

“It does happen, but the chances are, in my opinion, slim to none,” Somerset trial attorney and legal analyst Steven Sabra said of the possibility that the Massachusetts Supreme Judicial Court will overturn Hernandez’s first-degree murder conviction from his first trial two years ago in Fall River.

Kevin Reddington, a Brockton-based attorney who is considered one of the best trial lawyers in Massachusetts, agreed, saying that it is very rare for the state’s high court to overturn a first-degree murder conviction, though adding that it has happened. A decision on the Bristol County appeal, Reddington said, will not take into account anything from what happened in his Boston trial.

“Legally, the result in Boston has nothing to with the conviction out of Fall River,” Reddington said. “That will stand on its own.”

Hernandez, 27, is serving a mandatory life sentence, without the possibility of parole, for his April 2015 conviction on first-degree murder and related firearms offenses stemming from the June 2013 homicide of Odin Lloyd in North Attleborough.

Also charged with the July 2012 murders of Safiro Furtado and Daniel de Abreu outside a Boston nightclub, the former NFL star tight end was looking at two additional life sentences until a Suffolk County jury last Friday acquitted Hernandez on both murder counts. Following the verdict, Hernandez’s high-profile lead attorney, Jose Baez, expressed optimism that Hernandez will eventually be released from prison.

“There’s no finality in the other case yet,” Baez told the celebrity news outlet TMZ. “He still has many appeals, which we’re going to start taking a look at.”

Baez also said he believed there was a “strong likelihood” that Hernandez will get a new trial in the Lloyd murder case, and vowed to “go all at it” if he were to represent the former Patriot in a new trial in Bristol County. To overturn that conviction, Hernandez’s lawyers would have to prove that his first trial was somehow unfair or compromised, and that justice was not served.

The Massachusetts Supreme Judicial Court, which automatically reviews all first-degree murder convictions in the state, not only considers any errors during the trial that may have compromised the defendant’s legal rights but also reviews the evidence and the verdict. Though rarely exercised in first-degree murder cases, the high court has the authority to reduce the conviction to second-degree murder, which carries the possibility of parole after 15 years, or manslaughter.

Following the 2015 conviction, Hernandez’s attorneys asked the trial judge to vacate the verdict on grounds that jurors relied on “improper speculation, conjecture and guesswork,” but the judge rejected that petition.

Hernandez’s hopes for a successful appeal will be made harder by the fact that Superior Court Judge E. Susan Garsh, who presided over the trial in Fall River, several times ruled against the prosecution’s requests to present evidence of alleged prior bad acts, on the grounds that such evidence would have been unfairly prejudicial to Hernandez. For example, Garsh prohibited prosecutors in the Bristol County case from mentioning the double murders in Boston, nor did she allow text messages that Lloyd sent to his sister just before he died where he told her he was “with NFL.”

Garsh frustrated prosecutors on several other matters. She prohibited a photograph of Hernandez from his college days holding what appeared to be a Glock pistol in front of a mirror. She did not allow Hernandez’s former friend Alexander Bradley — the prosecution’s star witness in the Boston trial — to testify that Hernandez had allegedly shot him in the face in Florida. Garsh also denied the prosecution’s request to call on another friend who would have testified that Hernandez bragged about having a .45-caliber handgun just six weeks before Lloyd’s murder.

At the time, Garsh’s rulings angered the prosecution, but in hindsight, the judge’s decisions may have made it more likely that the murder conviction against Hernandez will stick.

“In my opinion, he’s going to have a difficult time on appeal,” Sabra said. “Could it happen? Possibly, but I would think not.”

Some online speculation and social media chatter have suggested that the Boston acquittals could play a role in appealing the Bristol County case because one suspected motive for the Lloyd shooting was that he knew about Hernandez’s alleged role in the Boston murders. However, that theory was never presented to the jury in 2015 and prosecutors in Massachusetts do not need to prove a motive to convince a jury to convict a defendant of murder.

One possible detail that Hernandez’s appellate attorneys could focus on would be Garsh’s decision during the trial to allow a Glock salesman to tell the jury that a black object Hernandez was seen holding in his hand — while on his home video surveillance system — appeared to be a Glock handgun. Garsh later told the jurors to disregard part of the salesman’s testimony, and that they were free to accept or reject the rest as it was his opinion.

Hernandez’s lawyers could argue that Garsh’s subsequent instructions were not enough to undo any damage the salesman’s testimony could have had to the defense, but Sabra noted that Garsh immediately cautioned the jury after the testimony. Also, prosecutors presented several weeks-worth of cell phone tower records, text messages, video surveillance footage, photographs, DNA and other evidence that essentially forced Hernandez’s lawyers by closing arguments to conceded that the former NFL star was at the crime scene.

“I think the case that was tried in Fall River was actually a stronger case,” Sabra said.

Reddington said he expects the next legal battle will be over a request for a new trial, where Hernandez’s lawyers would present arguments that something improper was done or evidence not presented that would have been critical for a fair trial.

“If the judge determines that justice was not served, the justice can set aside the verdict,” said Reddington, adding that both parties could then appeal that ruling.

With that said, the moment for when a court decides whether or not to overturn Hernandez’s conviction still appears to be several months, if not more than a year, away.

A motion for a new trial can take up to six months for a decision, and the docket in Superior Court indicates that Hernandez’s appellate attorneys are still receiving several hundred pages of transcripts from the 39 days of testimony in the 2015 trial.

The appeal has also not yet been docketed with the Massachusetts Supreme Judicial Court. It usually takes about a year for the high court to issue a ruling from the time an appeal in a first-degree murder case is docketed.

Even assuming that Hernandez was successful in overturning the conviction, he would still be incarcerated as attorneys scheduled a new trial and argued anew over evidentiary matters and other pretrial motions. He would then have to sit through another months-long trial and hope for a different outcome. And if he were to be acquitted, Hernandez would still have to serve four to five years in state prison for an unlawful gun possession charge that the Suffolk County jury convicted him on last week.

Said Reddington, “He’s going to be in prison for at least several more years.”

Email Brian Fraga at bfraga@heraldnews.com

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